Superferry Bills Split Between Houses

The Hawaii State Legislature is in a Special Session so that legislators can pull a legislative life vest from under its seat for the browbeaten Hawaii Superferry.

For those not following the trials and travails of Hawaii Superferry, here’s the story in a nut shell:

• The Superferry is Hawaii’s only commercial inter-island ferry service;
• The current vessel carries a maximum of 866 passengers, 282 cars or 28 forty-foot trucks with 65 cars, and travels approximately 35 knots [See Superferry Web site.];
• Both the legislature and the executive branch encouraged the development of the Superferry [See, e.g., News Articles 1, 2, 3, 4, and 5] ;
• Various improvements were made to Hawaii’s harbors with $40,000,000.00 in state funds;
• The Superferry was granted an exemption from Hawaii EIS laws by the State Department of Transportation;
• The Superferry began operation in late 2007;
• It was sued by community groups in both Kauai and Maui to enjoin Superferry operation;
• The Maui court dismissed the Sierra Club case in favor of the Superferry;
• The Sierra Club appealed to Hawaii’s Supreme Court;
• The Supreme Court reversed the Maui court; and
• The Maui court, based on the Supreme Court’s instructions, enjoined operation of the Superferry until an EIS is prepared.

We now join the legislature at this point in the story. The Legislature and the governor have called for a 2007 Special Session. Each house has introduced Superferry bills and HB1 and SB1 have gained traction. HB1 passed its third reading in the House and was transmitted to the Senate on October 26, 2007, while SB1 passed only its second reading in the Senate on October 26, 2007. Both bills have nearly identical language.

In the lengthy preamble to both bills, it is apparent that the legislature is keenly aware of its fundamental duty to pass laws that serve a public purpose and not individual interests. As such, the Superferry is never mentioned by name and several “findings” invoke the public purpose element of the bill including references to inter-island commerce, transportation, and disaster relief.

The bills' limited application is to “large capacity ferry vessels,” which are defined as a inter-island ferry vessels that "transports, is designed to transport, or is intended to transport per voyage at least five hundred passengers, two hundred motor vehicles, and cargo between the islands of the state.” Not surprisingly, the Superferry operates such a vessel. Companies operating such vessels would be allowed to operate while processing special management area permits, certificates of public convenience and necessity, common carriers by water, environmental assessments, and environmental impact statements. Under present laws, activities are not allowed to continue without completing these permitting processes.

The bills substantively differ under Section 4. The House bill grants general authority to the executive branch for imposing “conditions and protocols” on the ferry service based on a list of effects that must be considered including ocean life and water quality. The Senate bill includes the same language under Section 4 except that it specifically enumerates several conditions that must be applied. Both proposed bills allow the legislature to review the executive branch’s conditions on ferry service. Without reviewing the legislative record, the house version of Section 4 is better formulated to allow the executive branch, who has expertise in resource preservation, to tailor conditions as necessary.

The Superferry bills would save the Superferry from economic ruin. In their current forms, the bills would require the Superferry to comply with, inter alia, EIS laws with the exception that it can continue to operate while it completes the EIS process. However, even after the bill passes it will not end the Superferry’s headaches, because the executive branch will be empowered to add various conditions on the Superferry with continued legislative oversight.

If there are any “large capacity ferry vessels” considering a similar operation in Hawaii, time is of the essence, because the bill sunsets on the 45th day after the end of the 2009 regular legislative session.